新華社洛杉磯8月25日電 當地時間8月24日,網際網路公司TikTok向美國加利福尼亞州中區聯邦地區法院遞交了一份39頁的起訴書,正式控告美國政府8月6日發布的與該公司及其母公司字節跳動有關的行政令違法,以維護自身合法權益。
TikTok當天在官網發布的聲明中說,對一家商業公司來說,起訴美國政府並不是一件容易的事,但是公司已別無選擇,只有採取法律行動才能維護企業、用戶和員工的合法權益。面對美國政府近一年來不斷加緊的「圍剿」,以及所謂「TikTok對美國國家安全構成威脅」的指責,TikTok勝算幾何?
以下請看中國新華社和美國紐約時報的兩篇分析文章——法律專家認為,TikTok要在美國打贏這場官司的成功機率不高,字節跳動最終能保住TikTok美國業務的難度很大。有如下四個因素:一,本次訴訟僅針對8月6日的行政令,未把8月14日行政令列入,因為美國外國投資委員會是聯邦級別的跨部門委員會,有權審查外國在美國投資,判斷其是否損害美國國家安全。
在此前類似案例中,法院支持原告主張的享有合法程序的權利,但並不改判結果,最終涉案企業還是被迫出售了併購的美國公司。二,外國政府和企業此前對美國政府援引《國際緊急經濟權力法》所採取的行政令發起過很多挑戰,但一般只能在程序合法性方面得到支持,較難挑戰行政令與其法律依據之間的關係。三,8月6日行政令中「交易」涉及範圍尚不明確,還有待美國商務部在規定期限到達後予以解釋。因此,目前TikTok只能等具體限制措施明確並評估其影響後,再去法院申請初步禁止令。在此期間,美方要求字節跳動剝離TikTok的行政令依然有效,也較難被法院更改。四,川普政府「圍剿」TikTok和字節跳動的真實意圖,是在全球範圍封殺TikTok,阻止字節跳動成為全球公司。在這種背景下,TikTok很難在美國法庭上完全贏得本屬於自己的權利。
一,TikTok有可能通過法律行動,為自己贏得時間。加州大學伯克利分校法學院教授史蒂芬·達維多夫·所羅門說,「TikTok可以努力說服法院推遲執行行政令,從而延長交易時間。這就是訴訟的意義:避免情急之下賤賣。」二,字節跳動通過這一舉動也表達了面對川普政府打壓的態度,
中國企業不可能、也不應該在面對美國某些政客的霸凌行徑時忍氣吞聲,更不會任其宰割。三,TikTok通過在起訴書中擺事實、講道理,向世人說明,
該公司是負責任和講道理的,並沒有美國某些政客所污衊的那些不良做法,能向全球市場、企業家、投資人以及普通民眾傳遞信心。(來源 | 新華社客戶端)
▲這是8月21日在美國加利福尼亞州洛杉磯縣卡爾弗城拍攝的TikTok公司標誌。新華社發
以下是美國紐約時報針對TikTok所有者字節跳動公司起訴美國政府的報導和分析:
SAN FRANCISCO — TikTok sued the U.S. government on Monday, accusing the Trump administration of depriving it of due process when President Trump used his emergency economic powers to issue an executive order that will block the app from operating in the country.
The suit, which was filed in the Federal District Court for the Central District of California, is TikTok’s most direct challenge to the White House and escalates an increasingly bitter back-and-forth between the popular video app and American officials.Mr. Trump has repeatedly said TikTok, which is owned by the Chinese internet company ByteDance, poses a national security threat because of its Chinese ties. On Aug. 6, he issued twin executive orders banning transactions with TikTok and the Chinese social media app WeChat within 45 days. A week later, he issued a separate executive order giving ByteDance 90 days to divest from its American assets and any data that TikTok had gathered in the United States.
「We do not take suing the government lightly; however, we feel we have no choice but to take action to protect our rights, and the rights of our community and employees,」 the company said in its suit. 「Our more than 1,500 employees across the U.S. pour their hearts into building this platform every day,」 the company said, noting that it planned to hire more than 10,000 more workers across eight states in the coming years.Relations between the United States and China have soured in recent months over rifts in geopolitics, technology and trade. The campaign has been partly provoked by China’s more assertive posture, but also Mr. Trump’s desire to convince voters that he is tough on China.As part of that, Mr. Trump’s advisers have zeroed in on technology companies that they say are beholden to the Chinese government through security laws, including ByteDance, the Chinese telecom equipment maker Huawei and the internet company Tencent, the owner of WeChat.Mr. Trump’s first executive order against TikTok draws its legal authority from the International Emergency Economic Powers Act, which allows the president to regulate economic transactions in a national emergency. Past administrations have used it to punish foreign governments, as well as drug kingpins and hackers, but have never used it against a global technology company.Jason M. Waite, a partner at the law firm Alston & Bird, said courts would probably be reluctant to challenge the president on national security grounds. But if a court does decide to rule against Mr. Trump, that could end up curtailing the powers of the presidency.「I do think the U.S. should be concerned about having to defend I.E.E.P.A. actions and the impact that could have on the authority of a future president,」 Mr. Waite said.TikTok said in a blog post explaining the grounds for its lawsuit that the Trump administration 「failed to follow due process and act in good faith, neither providing evidence that TikTok was an actual threat, nor justification for its punitive actions.」 The company also claimed that the purported national security threat identified by the Committee on Foreign Investment in the United States was based on 「outdated news articles」 and did not address the documentation provided by TikTok demonstrating the security of user data.One of the Trump administration’s chief concerns has been the storage of American user data on foreign servers. But in its complaint, TikTok said it had taken 「extraordinary measures to protect the privacy and security of TikTok’s U.S. user data,」 which included storing American users』 data outside China on servers in the United States and Singapore. The company said it had also erected 「software barriers」 that stored U.S. user data separately from the data kept on other products and companies owned by ByteDance.The company also said many of its top personnel — including its chief executive, general counsel and global chief security officer — were all in the United States and were not subject to Chinese law. And further, content moderation across the TikTok app is led by a team based in the United States, operating independently from China.The Justice Department declined to comment on the suit.The president’s move to ban WeChat, a social media app used widely by people of Chinese descent in the United States, is also facing legal challenges. On Friday, a nonprofit group calling itself the WeChat Users Alliance filed a separate suit in a federal court in San Francisco arguing that the president’s attempt to ban WeChat violated various constitutional protections, including the First Amendment, and seeking an injunction against the move.The executive orders against TikTok have led ByteDance to explore a sale of the popular video app, which is used by millions of teenagers and influencers. The company is in talks with multiple American firms, including Microsoft and Oracle, for a sale of at least parts of its business. TikTok is continuing to negotiate a potential sale while it fights the U.S. government in court.Such a deal would require the company to move American user accounts over to the acquirer’s servers, a stipulation required by the White House. Microsoft is largely seen as the front-runner in the negotiations.Another Chinese tech company that the Trump administration has targeted as part of its clampdown is Huawei, the giant maker of smartphones and telecommunications equipment. Huawei has also tried to use the American legal system to push back, though not always successfully.Last year, the company sued the U.S. government over a spending law that prohibited federal agencies and contractors from using Huawei equipment, saying its constitutional rights had been violated. A federal judge in Texas ruled in the government’s favor this year.Huawei also sued the Federal Communications Commission late last year after the agency barred American mobile carriers from using government subsidies to buy the company’s gear. That case is still being heard.
Mike Isaac reported from San Francisco, and Ana Swanson from Washington. Raymond Zhong contributed reporting from Taipei, Taiwan.
來源:國際法務